The President of the Constitutional Court, Darco Kostadinovski LLD, spoke in an interview for the programme “Click Plus” about a number of current constitutional and legal issues. He addressed the case concerning the Law on the Use of Languages, the implementation of the Court’s decisions, amendments to the Criminal Code, the constitutional complaint, public administration reforms, and initiatives concerning judicial salaries and the Collective Agreement in the field of culture. Regarding public reactions to the case concerning the Law on the Use of Languages, Kostadinovski strongly rejected claims that the Constitutional Court was “mutilating the Albanian language”, describing them as political manipulation and the misuse of sensitive issues.
“That is a serious lie and serious manipulation. It bothers me greatly when matters are prejudged. In our country, politicians, in their pursuit of political votes and voter mobilisation, very easily exploit issues that are not really suitable for political manipulation, such as inter-ethnic relations. I do not know where he got his brief from, but this is absolutely not about any ‘mutilation’ of the Albanian language. I have repeatedly stated that no one will interfere with the Albanian language; it is a constitutional category and remains as it is regulated by the Constitution,” Kostadinovski said.
He pointed out that the Constitutional Court is not challenging the substance of the right to use the Albanian language, but is examining specific legal provisions through the prism of legal certainty and constitutionality.
“Legal certainty, as a fundamental principle of the rule of law, requires that the norms forming part of the legal order be clear and precise. Before me I have the Law on the Use of Languages; allow me to refer only to the provisions and the legislative drafting, that ‘wording’ runs through almost all of the articles of the law. But that does not mean that the substance is unconstitutional; rather, unconstitutional provisions would be removed, for example, phrases such as ‘and other institutions’, ‘as well as all other bodies’, ‘other institutions’, ‘as well as in other areas’, ‘as well as all other institutions’. There is no such thing in law. There is no law in which you will find ‘as well as in all other areas’, because then there would be someone acting as an arbiter, deciding which areas those are. For example, the use of the Albanian language in a kindergarten – if that means ‘mutilation’, then that is a lie, it is untrue,” the President of the Court stressed.
Kostadinovski placed particular emphasis on the opinion of the Venice Commission, noting that parts of its recommendations are selectively cited in public discourse.
“The opinion of the Venice Commission is very important to us. The Constitutional Court makes decisions every day based on international standards and generally accepted norms of international law. It is hypocritical to select from the opinion of the Venice Commission only what suits us and not highlight what does not. The Commission is very clear: compared with the 2008 law, this law significantly expands the scope of the use of the Albanian language, and that is commendable. But at the same time, it says that, under the current circumstances, if the law were implemented in full, it would significantly slow down the functioning of the entire judicial system, thereby creating a risk of serious interference with the right to a fair trial,” Kostadinovski said.
He added that the Commission had also noted that the law contains “many ambiguities regarding its meaning and scope”, and that the Constitutional Court has an obligation to intervene whenever unclear and imprecise norms exist that could be applied arbitrarily.
Regarding the repeal of the so-called “balancer”, President Kostadinovski assessed that the new legislative solution represents a significantly better concept because, in addition to appropriate and equitable representation, it also affirms the principle of expertise and competence.
“The essence of the law is that the operationalisation of appropriate and equitable representation is now regulated by law rather than by secondary legislation. More importantly, alongside appropriate and equitable representation, another constitutional value is being operationalised – expertise and competence, that is, the merit system. When these two constitutional values are brought together, we have a good law. Citizens will have a much more professional and competent, as well as fairly represented, public administration,” Kostadinovski said.
Referring to the implementation of Constitutional Court decisions, Kostadinovski stressed that the new Act of the Court has introduced considerably stronger mechanisms for monitoring their enforcement.
“With the new Act of the Court, we have significantly strengthened the mechanism for monitoring the enforcement of our decisions. If we establish that a body is not complying with a decision, we will prepare a separate report and notify the Public Prosecutor, because failure to comply with a Constitutional Court decision is a criminal offence punishable by up to ten years’ imprisonment,” the President of the Court stressed.
Regarding the amendments to the Criminal Code, he assessed that, within a short period, the state had created as many as “five legal regimes” for one sensitive criminal offence, which, in his view, constitutes a serious violation of legal certainty and the rule of law.
“We in the Constitutional Court often say that frequent changes to laws constitute a serious violation of legal certainty and the rule of law. We had one legal regime until 2004, then catastrophic amendments, followed by our proceedings, then new amendments, and then the possibility of yet another solution. Five legal regimes from 2024 to the present for one sensitive area. If we had intervened and stopped the proceedings, we would have created a legal vacuum and there would have been no criminal offence. That would have been an invitation to widespread looting,” Kostadinovski said.
In the interview, the President of the Constitutional Court also spoke about the need for constitutional amendments, the role of the Constitutional Court in the legal order, political pressure on the institution, and the case concerning Article 218 and the debts of public enterprises. He assessed that, although the Constitution provides a sufficient framework for the functioning of the state, there are a number of weaknesses and gaps that should be addressed in the future. He noted that, through its case-law, the Constitutional Court gives substance to the fundamental values of the constitutional order.
“If the Constitutional Court, in any case and in any way, interprets pluralism or social justice or, I do not know, the right to a healthy environment, the rule of law, the separation of powers – any of these – that interpretation is already binding on all bodies, including Parliament and the courts; they must not interpret them differently,” Kostadinovski said.
He pointed out that the Constitution also contains specific “constitutional gaps”, citing the example of the so-called “pocket veto” of the President of the Republic, as well as the possibility of authentic interpretations, which, in his view, represent a “remnant of the previous system”.
“Authentic interpretations are a very dangerous thing. The legal effect of an authentic interpretation is retroactive. When an authentic interpretation is given as to how a particular article of a particular law should be interpreted, it applies as though it had been interpreted in that manner from the day the law was enacted. That is a remnant of socialism,” the President said.
Referring to the fact that the state still has no Law on the Constitutional Court, Kostadinovski noted that the institution operates on the basis of only six constitutional provisions and the Act of the Court, assessing that the intention of the constitution-maker was to protect the Court from political interventionism.
“I believe that this Constitutional Court, in its present composition, has genuinely acted over the past two years as the constitution-maker intended. If state bodies are nervous and we are causing problems for their work, that means that the Constitutional Court is doing its job well,” Kostadinovski said.
He stressed that, over the past two years, the Constitutional Court has been “bravely and seriously” fulfilling its role as a corrective to the other branches of government, and spoke openly about political influence and pressure on the institution.
“I state with the utmost responsibility: let an assessment be made of the period from independence to the present. If there is a government, legislature or local authority that has as many problems with the Constitutional Court as they do today, I will take off my judicial robe and leave. I stand by that. It means that the Constitutional Court is seriously and courageously doing its job and resisting political pressure. That is the reality,” President Kostadinovski said.
Regarding the case concerning Article 218 and the debts of public enterprises, the President of the Constitutional Court warned that a potential decision could have serious consequences for the state system and the economy.
“The consequences of any decision we may take could be catastrophic, even of cataclysmic proportions, because the debts of public enterprises amount to around one billion euros,” Kostadinovski stressed.
He emphasised that the state must introduce financial discipline and put an end to irresponsible management of public enterprises.
“Public enterprises cannot behave arrogantly and complacently while private companies go bankrupt because they cannot collect their debts. The state must find a way to deal with this, or with excessive party-based employment simply to provide people with salaries. For example, a private company would have to go bankrupt. This must come to an end,” President Kostadinovski said.
The President stressed the need to introduce a constitutional complaint, assessing that North Macedonia is the only country in Europe with such a limited scope of direct constitutional judicial protection.
“If all constitutionally guaranteed rights were to enjoy direct constitutional judicial protection, through the introduction of a constitutional complaint, the benefits would be enormous. First, we would not lose so many cases in Strasbourg. Second, citizens would be able to exercise their rights, and third, the Constitutional Court would establish a form of standardisation of human rights that would be binding on the ordinary courts. This means that the ordinary judiciary would be more constitutionally disciplined and would have clear guidance on how to proceed,” the President of the Court stressed.
Kostadinovski also spoke about the new initiative concerning judges’ salaries, saying that he was disappointed by calls for further intervention in the legislative solution that the Court had previously restored.
“I was disappointed, and I will tell you from what perspective. When we adopted the decision on judges’ salaries, of course we took into account what this would mean for the Budget. We deliberately suspended the proceedings concerning the Law that is now being challenged again through a new initiative, so that, by repealing the new law, we could bring the previous one back into force. So that judges’ salaries would be dignified. And what disappoints me? The law that we restored is now being challenged; in other words, they want the previous law to be reinstated. What would that mean, if we are being realistic? I am expressing my personal view here; I cannot speak on behalf of the judges. If, hypothetically, the Constitutional Court were to intervene in the law that is now being challenged, then the salaries of first-instance and appellate judges – that is, the salary coefficients – would reach the level of the President of the Republic, the Prime Minister and the Speaker. Is that realistic? It is not,” Kostadinovski said.
Regarding the Collective Agreement in the field of culture, the President of the Constitutional Court stressed that the Court acts exclusively on the basis of constitutional and legal arguments and that there are serious grounds for questioning whether the agreement regulates a matter that can only be regulated by law.
“The entire public sector is in an identical factual and legal position. So how is it that in the field of culture, under a collective agreement, you have three years of paid leave for doctoral studies, while no other area of the public sector has that right? Are citizens equal before the Constitution and the law? No,” Kostadinovski said.
In the interview, the President of the Constitutional Court also conveyed a broader message concerning the situation in the country and the rule of law.
“You cannot have your mouths full of European values and standards until noon, and then, after noon, switch to the Balkan way of doing things. The result is what we are living through today. Is the rule of law at an enviable level? It is not,” Kostadinovski said.
Video of the interview: